Pendleton v City of New York

[*1] Pendleton v City of New York 2008 NY Slip Op 52439(U) [21 Misc 3d 1141(A)] Decided on December 3, 2008 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2008
Supreme Court, Kings County

Kevin Pendleton,, Plaintiff,

against

The City of New York, et al., Defendants.



10694/94



Defendant

Alison Estess, Esq.

New York City Law Dept

100 Church St, 4th Floor

NY NY 10007

Plaintiff

Soledad Rubert, Esq.

150 Broadway, Suite 1314

NY NY 10038

Robert Miller, J.

Defendants the City of New York ("the City"), New York City Police Department (hereinafter "the Municipal defendants") and Detective Joseph Falcone ("Falcone") move, by order to show cause, for an order, pursuant to CPLR §§ 3103(b) and 2221, granting renewal and reargument of the City's cross motion (1) protecting discovery set forth in the Court's April 14, 2008 Decision and Order (hereinafter the "Court's Order"); and (2) bifurcating plaintiff Kevin Pendleton's § 1983 claim against the defendants for discovery and trial; and upon renewal and reargument, revising the Court's Order. The Defendants also move, pursuant to §§ 3101, 3106, 3107, 3111, 3121 and 3124, to compel plaintiff to produce discovery. Plaintiff cross-moves for an order, pursuant to CPLR § [*2]3126 (1) striking the defendants' answer for failure to comply with court ordered discovery; (2) setting this matter down for an assessment of damages against defendants; and (3) awarding plaintiff costs and attorney's fees, including the $45 fee paid for the instant cross-motion.

Relevant Procedural History

Plaintiff previously moved for an order, inter alia, directing the deposition of Falcone, as well as directing the defendants to provide outstanding discovery. Defendants cross-moved, requesting that the Court issue a protective order with respect to Falcone's personal identifying information and other "irrelevant" questions, and for an order bifurcating plaintiff's 42 U.S.C. § 1983 ("§ 1983") claim against the Municipal defendants for discovery and trial. In the event that the defendants were required to disclose documents reflecting allegations of misconduct by non-party officers, which defendants argued were privileged and irrelevant, they requested permission to redact specific personal identifying information and requested that the Court issue a protective order limiting the use of such materials.[FN1] On April 18, 2008, the Court granted plaintiff's motion to compel a further deposition of Falcone, to take place subsequent to defendants' production of all prior complaints made against Falcone for a period of five years prior and three years following plaintiff's arrest subject to redaction of personal information. The Court also ordered defendants to disclose all complaints filed against individual officers from the 75th Precinct, including the Civilian Complaint Review Board ("CCRB") and Internal Affairs Board ("IAB") files, internal investigations and disciplinary actions taken against them on grounds identical to plaintiff's present claims, limiting such records for four years prior and two years subsequent to plaintiff's arrest, subject to an in camera review. Lastly, the Court denied defendants' motion to bifurcate the trial.

Defendants seek leave to renew that portion of their previous cross motion for a protective order, and, in support, submit new affidavits from members of the NYPD and CCRB.[FN2] Defendants claim that these affidavits demonstrate that the previously-ordered discovery is overly burdensome. Also, defendants seek leave to renew their cross motion for bifurcation. Defendants argue that the newly-submitted affidavits establish that conducting discovery on a Monell claim is a burdensome process, and that a joint trial of [*3]plaintiff's § 1983 claims against Falcone and against the Municipal defendants would thus be unduly prejudicial to all defendants.

With respect to that portion of defendants' motion to reargue, defendants contend that the Court's Order erroneously, and vaguely, directs the Municipal defendants to produce for in camera inspection CCRB and IAB files for the individual officers of the 75th Precinct, including all internal investigations and disciplinary actions taken against them on grounds identical to plaintiff's present claims. Defendants argue that the Court failed to explain what constitutes "grounds identical to plaintiff's claims," as the nature of plaintiff's claim "remains unclear." With respect to the Court's Order denying their request for a protective order with respect to Falcone's CCRB, IAB and personnel records, defendants argue that the discovery is patently irrelevant and not material to plaintiff's § 1983 cause of action alleging malicious prosecution. Additionally, defendants argue that the Court should modify its Order to limit, for in camera review, production of the subject personnel, CCRB and IAB files of both Falcone and non-party officers of the 75th Precinct, subject to redaction of personal information, including solely records of substantiated complaints made prior to plaintiff's arrest.

Defendants' Motion to Renew

A motion for leave to renew must be "based on new facts not offered on the prior motion that would change the prior determination," and contain a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e]). The Court may not grant renewal where the moving party fails to proffer a reasonable justification for failing to present the new facts on the original motion (See Ulster Savings Bank v Jeffrey Goldman, 183 Misc 2d 893 [2000]); see also Worrell v Parkway Estates, LLC, 43 AD3d 436 [2007][citing Greene v New York City Hous. Auth., 283 AD2d 458 [2001]); Yarde v New York City Transit Authority, 4 AD3d 352 [2004]).

The Court finds that defendants' motion to renew, which primarily consists of annexed affidavits concerning the voluminous amount of discovery entailed, fails to contain reasonable justification for the failure to present such facts on prior motion (CPLR 2221[e][3]; see also Ulster Sav. Bank v Goldman, 183 Misc 2d 893; Greene, 283 AD2d 458).[FN3] Defendants argue that the Court should grant renewal based on said affidavits, particularly where the issue was not raised by the parties, but rather, sua sponte by the Court. However, these issues were previously raised by the parties in their [*4]respective motion papers.[FN4] In addition, plaintiff's February 18, 2005 Court-Ordered Notice for Discovery and Inspection which required that defendants respond within 45 days, previously requested the production of such discovery. The Notice of the Discovery and Inspection, therefore, belies defendants' claim that they were unaware of the breadth of the requisite discovery ordered. Specifically,

the Notice for Discovery and Inspection requested that defendants provide all complaints made against Falcone, without time constraints and not subject to in camera inspection. In addition, defendants have been aware of the extent of discovery after plaintiff's July 7, 2008 Order to Show Cause compelling the production of these items, including discovery with respect to plaintiff's Monell and §1983 causes of action. Defendants' position that they were not apprised of the extent of discovery to be provided because plaintiff's Monell claim was previously dismissed and not reinstated until October 9, 2007 is unavailing.

Courts routinely permit discovery of an officer's history, as far as 20 years prior to the incident (See Younger v City of New York, 2006 WL 1206489 [SDNY 2006]; Frails v City of New York, 236 FRD 116 [EDNY 2006]). In civil rights cases, federal law allows for much more liberal discovery of prior complaints and police history, subject to redaction to protect privacy interests (Ramos v City of New York, 285 AD2d 284 [2001]). Accordingly, defendants' motion to renew is denied.

Defendants' Motion to Reargue

A motion for leave to reargue, directed to the sound discretion of the court, is properly granted upon a showing that the court overlooked, misapplied or misapprehended the relevant facts or law (see CPLR 2221 [d][2]). It is not a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see, e.g., Foley v Roche, 68 AD2d 558 [1979]). Although a movant may not have technically met the requirements for reargument, the granting of this relief is discretionary with the court in the interest of justice (Ruggiero v Long Island Railroad, 161 AD2d 622 [1990].

In moving to reargue, defendants maintain that the Court's directions regarding discovery are unclear. Specifically, the Order directs the defendants to produce for in camera inspection [*5]

Civilian Complaint Review Board and IAB files of the individual officers of the 75th Precinct, including all internal investigations and disciplinary actions taken against them on the grounds identical to plaintiff's present claims.

According to defendants, the nature of plaintiff's civil rights claims remain vague, and they therefore request that the Court order the plaintiff to explicitly describe the types of misconduct encouraged by a City policy. Plaintiff, however, argues that the basis for his civil rights claims are not vague; rather, they are specifically based on the premise that Falcone and other detectives in this case, and in other cases involving the 75th Precinct, coerced, pressured and otherwise instigated witnesses to falsify evidence for the purpose of obtaining convictions and of closing cases. In support, plaintiff refers to the Appellate Division Order reinstating both plaintiff's §1983 claims against the municipal defendants and his § 1983 against Falcone.

To the extent that courts limit production of an officer's files to incidents "similar" to the incident in question, they have limited production to incidents of the same general type, such as use of force (see Bradley v City of New York, 2005 WL 2508253 [SDNY 2005]; Younger, 2006 WL 1206489. Here, plaintiff alleges misconduct by members of the 75th Precinct Detective Squad concerning coercion of witnesses, and/or tampering and fabrication of evidence, whether only such information is contained in CCRB and IAB records and other documents. Accordingly, cases involving misconduct concerning coercion of witnesses, and/or tampering and fabrication of evidence constitute "grounds identical to plaintiff's present claims."

Defendants also contend that these records are both privileged and patently irrelevant, particularly with respect to post-incident and unsubstantiated claims. For this reason, defendants request that the Court limit discovery to substantiated claims of misconduct during arrests and prosecutions of African-American males for three years prior to the incident. They also argue that the determination of the relevancy and materiality of such documents to the plaintiff's claims should be made only after in camera inspection. Further, defendants maintain that non-party officers require an opportunity to be heard. Further, the defendants request that the Court extend the City's time to comply 4 months after the decision on this motion, due to the complex nature of searching for the sought-after documents.

The "official information" privilege, particularly covering the disclosure of police material and personnel files, is governed by federal common law (See King v Conde, 121 FRD at 198). The party opposing such discovery has the burden of demonstrating that, based on the balance of interests, the information should not be disclosed (See Collins v New York, 222 FRD 249 [2004]). Specifically, the party resisting disclosure must make a "substantial threshold showing" of a specific harm connected to the disclosure of specific information (King, 121 FRD at 190). If such a showing is made, the court must subsequently balance the interests for and against disclosure of the discovery (id.).

[*6]Post-Incident Discovery

Defendants contend that post-incident complaints and records are not discoverable here. Butler v. City of New York, 15 Misc 3d 1134 at *9 [citations omitted]) states,

[e]ven under the more restrictive regimen of Civil Rights Law 50-a, disciplinary and civilian complaint records, both before and after the incident sued upon, have been found subject to disclosure in police misconduct cases.

However, here, the Court modifies that portion of its prior Order granting post-incident discovery, as plaintiff is not entitled to such discovery. Plaintiff initially failed to provide a factual predicate for providing access to these records, and he did not sufficiently address the particular relevancy of post-incident discovery in relation to his claims. Further, the Court finds no reason for this discovery, because post-incident discovery is not required for plaintiff to establish his claims, including those claims under § 1983. Accordingly, the Court holds that defendants are not required to provide post-incident discovery.

Substantiated v. Unsubstantiated Complaints

The Court has broad discretion to manage discovery, especially in cases involving Monell claims, and impediments to discovery in such cases are not favored (See e.g., King v Conde, 121 FRD 180][holding that plaintiffs in civil rights actions are presumptively entitled to discovery regarding "prior complaints and police history"]). As a result, Courts have routinely rejected the defendant's position concerning the discoverability of such CCRB and IAB records (See Zhao v City of New York, 2007 WL 4205856 [SDNY 2007][citations omitted]). Prior unsubstantiated complaints may be relevant to prove a Monell claim, particularly with respect to notice (Vann vs. City of New York, 72 F3d 1040 [1995]["[d]eliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents"]; see also Bradley v City of New York, 2005 WL 2508253; Guzman v Jacobson, 1999 WL 14667 [EDNY 1999]). That the allegations may not have been substantiated does not protect the records from discovery (Pacheco v City of New York, 234 FRD 53 (EDNY 2006]. Accordingly, defendants are required to provide to the Court, for in camera inspection, both substantiated and unsubstantiated complaints that pertain to conduct similar to that alleged by plaintiff (id.).[FN5]

Privilege

The City defendants argue that records of allegations and complaints of police misconduct within the 75th precinct are privileged, and that, before a court may order disclosure of personnel records, it must give interested parties the opportunity to be heard. Whether privilege attaches in a particular case "is a fact-specific determination for a fact-[*7]discretion weighing court, operating in camera, if necessary" (See Matter of World Trade Ctr. Bombing Litigation, 93 NY2d 1 [1999]). In Butler, the Court determined that non-party police officer files were not to be disclosed without giving the interested party the opportunity to be heard. As a result, the Court in Butler directed that the records disclosed "shall be redacted for the names and other identifying information of any officer not named as a defendant" (Butler, 15 Misc 3d 1134 at *9).

Similarly, the Court's Order previously directed such discovery to be provided to the Court for an in camera inspection, with the name of the officers and other identifying personal material redacted. Notwithstanding the Court's determination that the defendants failed to make a showing of harm in their initial motion, personal information, such as home addresses, should be redacted (Collens, 222 FRD at 13 [citations omitted]). The Court's Order in this respect stands. However, in the event that any non-party officer objects to such disclosure, they may submit an affidavit to the Court to also be considered during the in camera review.

Detective Falcone

With respect to the Court's Order denying their request for a protective order concerning Falcone's CCRB, IAB and personnel records, defendants argue that the discovery is patently irrelevant and not material to plaintiff's § 1983 cause of action alleging malicious prosecution. Defendants argue that the Court overlooked the issue of whether their objection, based upon patent irrelevance, was applicable. In addition, defendants argue that the Court should modify it's order to require in camera production of Detective Falcone's personnel, CCRB and IAB files.[FN6]

The Court finds defendants' arguments unavailing. These records are clearly relevant and material to plaintiff's claims, particularly in light of plaintiff's viable civil rights claims against Falcone for false arrest and malicious prosecution. Plaintiff adequately demonstrated the relevance of such discovery, and defendants' remaining arguments are without merit.

With respect to the above ordered discovery, because defendants represent that a number of documents have yet to be located, and/or no longer exist, they are to provide an affidavit by someone with personal knowledge to plaintiff's counsel recounting the current status of the searches, or the circumstances regarding the absent documents, within 30 days. The parties are to appear for a further conference in Part 25 on January 25, 2009, to resolve any remaining discovery issues.

Bifurcation [*8]

The defendants seek to reargue their request for a bifurcated trial, on the ground that this Court misapprehended the relevant facts pertaining to the complexity of conducting discovery on the Monell claim simultaneously with the rest of the case. In support, they cite to prejudice and jury confusion. In addition, defendants maintain that, since municipal liability is derivative of Falcone's liability, and since the proof required to establish a Monell claim is substantially different from the proof necessary to establish civil liability, the most prudent course is to try the Monell claims separately and to stay discovery concerning those claims until the liability of the individual defendants is established.

An action may be bifurcated pursuant to Fed. R. Civ. P. 42(b) under appropriate circumstances, such as judicial economy (by potentially avoiding costly discovery and trial against a municipality in the event that the individual parties prevail in the initial action), and to reduce prejudice against the individual parties, which might otherwise result from the introduction of evidence regarding such municipalities. Granting a motion to bifurcate is a matter of judicial discretion (105 NY Jur. 2d Trial § 207 [2008]).

Here, the Court previously weighed several factors in determining whether a separate trial is warranted, including whether hardship to the parties would be reduced, whether a determination would be more easily reached, whether various issues would be clarified, and whether bifurcation would limit jury confusion. The Court determined that bifurcation was unlikely to reduce the time spent at trial, and may require witnesses and parties to submit to two separate, and somewhat repetitive, proceedings. Moreover, the issue of juror prejudice or sympathy is routinely and successfully handled by appropriate court instructions. Thus, the Court's Order stands, and plaintiff's case is not bifurcated.

Defendant's Motion to Compel Discovery and Plaintiff's Motion to Strike Defendants' Answer

Defendants request the Court compel plaintiff to produce documents related to his allegations in this action. Specifically, they allege that on May 7, 2008 the Municipal defendants served plaintiff with a Second Notice for Discovery and Inspection. Plaintiff objected to said Notice, which demanded: (1) "all documents" in plaintiff's possession referable to the Blake v. Race action in the Eastern District of New York; (2) "all documents" in plaintiff's possession referable to Pollard v City of New York and Detective Joseph Carbone; (3) "all documents" in plaintiff's possession with respect to the arrests and prosecutions of Jeffrey Blake, Ruben Ortega, Timothy Crosby and Ricardo Burke; (4) A copy of the video tape recording of the "60 Minutes II" program entitled "The Liar;" (5) copies of all other statements made by Dana Gardner regarding any actions taken by members of the 75th Precinct; (6) copies of all statements known to plaintiff with regard to the actions taken by members of the 75th Precinct; (7) last known addresses of any witnesses plaintiff intends to call at trial in the possession of his Monell [*9]claim against the City defendants. With respect to documents pertaining to civil actions commenced by citizens of Brooklyn against them, plaintiff argues that the defendants have all the information they seek from the plaintiff.[FN7] He also objects to defendants' request for attorneys' work product and material prepared for litigation, and argues that, based on both CPLR 3101(c) and CPLR (d)(2), any witness statements obtained by plaintiff's attorney in this litigation by defendants are not subject to discovery, and therefore their motion for production should be denied.

With respect to the actions Blake v Race, Pollard v City of New York and Detective Joseph Carbone and the arrests and prosecutions of Jeffrey Blake, Ruben Ortega, Timothy Crosby and Ricardo Burke, plaintiff shall provide defendants with the caption, index number and county of each action so that defendants may obtain the public records in the county clerk's file. Defendant is not entitled to such discovery relating to plaintiff's counsel's attorney work product and material prepared for litigation. Plaintiff is to produce a copy of the video tape recording of the 60 Minutes II tape entitled "the Liar." Plaintiff is not required to provide copies of statements made by Dana Gardner, as well as any witnesses known to plaintiff with regard to the actions taken by the 75th Precinct. Lastly, plaintiff is to provide the last known addresses of any witnesses he intends to call at trial in the prosecution of his Monell claim against the Municipal defendants. Said discovery is to be provided within 30 days.

Lastly, plaintiff submits that defendants' repeated failure to comply with court orders, specifically the April 14, 2004 Preliminary Conference Order, the February 22, 2005 Compliance Conference Order; Judge Hinds-Radix' March 24, 2006 Order; this Court's January 23, 2008 Order, and the April 14, 2008 Order, and resulting prejudice, warrants the striking of their answer. However, since plaintiff has not established that defendants' conduct was willful, frivolous or undertaken in bad faith, the court declines to strike any pleadings or to award costs or sanctions (see e.g. Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]; Cruzatti v St. Mary's Hosp., 193 AD2d 579, 580 [1993]; W.J. Nolan & Co., Inc. v Daly, 170 AD2d 320, 321 [1991]).

Accordingly, the Court modifies the previous Order to the following extent: the Court orders a further deposition of Falcone, to take place subsequent to defendants' production of (1) all prior complaints made against Falcone for a period of five years prior to plaintiff's arrest, subject to redaction of personal information; and (2) all complaints filed against individual officers from the 75th Precinct, including CCRB and IAB files, internal investigations and disciplinary actions taken against them on grounds identical to plaintiff's present claims, limiting such records for four years prior, subject to redaction of personal information, and subject to an in camera review. With respect to [*10]that portion of defendants motion seeking outstanding discovery, plaintiff is required to provide the discovery requested by defendants, as indicated above, within 30 days. Plaintiff's motion to, inter alia, strike defendants' answer is denied in all respects. The parties are to appear for a further compliance conference on January 25, 2009, to resolve any remaining discovery issues, including the time required for defendants to retrieve all the requisite discovery.

This constitutes the Decision and Order of the Court.

ENTER,

J. S. C. Footnotes

Footnote 1:Defendants also requested that Falcone be produced for a further deposition only following the Court's in camera inspection of said materials.

Footnote 2:Affidavits include that of Graham Daw, Agency Counsel for CCRB; Kathleen M. Kearns, Executive Agency Counsel of the New York City Police Department ("NYPD"); Scott Haber, NYPD Computer Systems Manager; Catherine Mccann, NYPD Administrative Manager; and Michael Aprile, NYPD Sergeant and Supervisor of the Records Section of the NYPD Internal Affairs Bureau.

Footnote 3:The Second Department has expressly found that, as a result of the amendment CPLR 2221 [e][3], a court is without discretion to grant renewal in the absence of a reasonable excuse (see e.g., Worrell, 43 AD3d 436; see also Russo v Keyspan Corp., 18 Misc 3d 1118(A) [2008]). For discussion on the disagreement among the courts concerning whether a court can consider on renewal evidence not included in original motion, see Poag v Atkins, 3 Misc 3d 1109(A)[2004]).

Footnote 4:The Court previously determined that the Defendants failed to meet the "substantial threshold burden" as their claim to exemption, based upon 50-a and/or the public interest privilege, was not supported by the required affidavit "from a responsible official within the Police Department or Civilian Complaint Review Board, explaining, among other things, the specific interests implicated and how they would be injured by disclosure" (Butler vs. City of New York, 15 Misc 3d 1134(A)[citations omitted]).

Footnote 5:As stated above, plaintiff's claims are grounded in tampering with evidence, coercing or attempting to coerce witnesses and fabricating evidence.

Footnote 6:As per discussion above, the court also rejects defendants' request for the production of records limited to substantiated complaints against Falcone. The Court also excludes post-incident discovery.



Footnote 7:According to plaintiff, the documents that the defendants seek in their May 5, 2008 Notice for Discovery and Inspection are among the very documents this Court has ordered defendants to produce to plaintiffs.